As a label for something, “new” usually suggests the date of its origin or the appearance of some new aspect of it. Often it is used in contrast to the old, for example, “the new law,” or “the new generation.” But it can also signify something new that has been introduced into a legal system, for instance, a law firm pursuing a client-centric approach to service. This new focus is an important element in a larger strategy that may help a firm to increase revenue and client satisfaction while reducing operating costs.
One aspect of law new involves a change in the nature of scholarly work. The process of legal scholarship has tended to focus on the justification of individual cases and interpretations, which in turn have been based on an assumption that a case or an interpretation is law. This case-situated perspective has been useful, but it limits the ability of scholars to respond to legislative and administrative developments that do not fit into a precedent framework.
Legislators and administrators, however, do not think in terms of precedent, and they do not invoke transcendental principles in their decisionmaking processes. They judge the operation of existing laws by the results they produce. To address their needs, scholars must shift from a case-situated to a cause-and-result mode of analysis.
To do so, they must also shift the audience of their scholarship. If they still think of themselves as addressing judges, their work will continue to be of limited utility. But if they begin to think of their audience as legislators and admin istrators, they will need to develop broad perspectives that take on whole areas of the law, such as how private causes of action can be structured or what kinds of enforcement strategies an agency should employ.
These kinds of efforts will require insights from other disciplines, including sociology and political science. They will also call for a different conceptual model of the law, including the way we think about what counts as a law and the role of a legal academy. The new conception of law that is required will be very difficult to achieve. That does not mean, though, that it is impossible; just that the effort will be more difficult than a number of people assume. It will take a new concept of law for our lawmaking to truly transform. That is why it is so important for legal scholars to begin the task now.